Neighbour nuisance and judicial reorganisation: when to declare your claim?

Imagine the scene: you are the owner of a small building in Castelnaudary, in the Aude. You let it to a tradesman who sets up his workshop there. Everything goes well until the day your neighbour, Mr Dupont, complains of noise and unbearable odours. He sues you in court to obtain works and damages. But in the meantime, your tenant is placed in judicial reorganisation (redressement judiciaire). You must then declare your claim in the liabilities of the collective proceedings. But what is the date of birth of this claim? Is it the day the nuisance started? The day of the service of the claim form? Or the day of the judgment? This question, apparently technical, can cost you thousands of euros if you get it wrong. The Court of Cassation, in a judgment of 7 December 2004, gives a clear answer: the generating event of the claim is the service of the claim form by the neighbour, and not the persistence of the nuisance. In other words, it is the act that implicates you that gives rise to your right to claim an indemnity from your tenant.

This decision, handed down by the commercial chamber of the Court of Cassation, concerns a landlord (Mr A...) who, like you, let a building. His tenant caused abnormal neighbourhood disturbances (noise, vibrations, etc.). The owner of the adjoining property sued Mr A... to obtain the execution of works and damages. Since the tenant was in judicial reorganisation, Mr A... had to declare his claim. But the Court of Appeal had considered that the claim arose after the opening judgment, because the nuisance persisted. The Court of Cassation quashes this decision: it recalls that the landlord's claim originates from the claim form served on him, which predates the opening of the collective proceedings. It does not matter that the nuisance continued afterwards.

Why is this important for you? Because if you are a landlord and your tenant is in collective proceedings (judicial reorganisation or liquidation), you must declare your claim within the time limits. If you declare too late, you lose all right to be reimbursed. And if you do not declare at all, it is the same. This decision helps you determine the starting point of your claim: it is the service of the claim form or the formal notice, not the duration of the nuisance. In short, as soon as you receive a claim form, you know that your claim has arisen. You must therefore declare it to the judicial representative (mandataire judiciaire) of your tenant, even if the nuisance continues.

The facts: a story that happens every day

Mr A..., owner of a building for mixed use (residential and commercial) located in Castelnaudary, lets it to a company which operates a business there. The activities of this company generate significant noise and odour nuisance for the neighbour, Mr B..., owner of the adjoining property. The latter has endured these disturbances for several months. Exasperated, he sues Mr A... before the Tribunal de grande instance of Toulouse to obtain insulation works and payment of damages for loss of enjoyment. The claim form is served in March 2001.

However, a few months later, in June 2001, the tenant company is placed in judicial reorganisation by the Tribunal de commerce of Toulouse. Mr A... then finds himself in a delicate situation: he is being sued by his neighbour for nuisance caused by his tenant, but the tenant is now under the protection of the Tribunal de commerce. In order to be able to recourse against his tenant and obtain reimbursement of the sums he might be ordered to pay, Mr A... must declare his claim in the liabilities of the judicial reorganisation. He does so, but the judicial representative disputes the date of birth of the claim. According to him, the claim arose after the opening judgment, because the disturbances continued after June 2001. If the claim arose after the opening, it is a post-commencement claim (créance postérieure), which must be declared within a different time limit, and above all, it is subject to less favourable payment rules.

The Tribunal de grande instance, and then the Court of Appeal of Toulouse, agree with the judicial representative: they consider that the generating event of the claim is the persistence of the nuisance after the opening. Mr A... appeals in cassation. The Court of Cassation, in its judgment of 7 December 2004, censures the Court of Appeal. It recalls that the generating event of the landlord's claim is the claim form served by the neighbour, which predates the judicial reorganisation. It does not matter that the nuisance continued afterwards: the claim was already born at the time of the service of the claim form. Mr A... had therefore declared his claim within the time limit.

The reasoning of the court — dissected

The Court of Cassation relies on Article L. 621-43 of the Commercial Code (now Articles L. 622-24 et seq.), which requires any creditor to declare his claim in the liabilities of the debtor in collective proceedings. But to know whether the declaration is made in time, the date of birth of the claim must be determined. In principle, a claim arises on the date of the event that gives rise to it (the generating event). Here, what is that event?

The Court of Appeal had reasoned as follows: abnormal neighbourhood disturbance causes continuous damage. As long as the nuisance lasts, the damage worsens. Therefore, the claim for compensation arises each day, and for the part after the opening judgment, it arose afterwards. But the Court of Cassation considers this reasoning erroneous. It distinguishes between the nuisance itself (the generating event) and its consequences (the damage). The nuisance is the action of the tenant. But the landlord is not directly responsible for the nuisance: he is responsible as landlord, because he allowed his tenant to cause nuisance. However, this liability is engaged from the moment the neighbour sues him. Indeed, as long as the neighbour does not act, the landlord has no debt. The claim form is therefore the generating event of the reimbursement claim that the landlord may have against his tenant.

What few people know is that the law of collective proceedings has very strict rules on the date of birth of claims. A claim arising before the opening judgment (pre-commencement claim) must be declared within two months of the publication of the judgment. A claim arising after (post-commencement claim) must be declared within a period of one year, but it is paid only after pre-commencement claims, and often last. Here, the Court of Cassation wanted to avoid the landlord being penalised by the persistence of the nuisance. It thus protects landlords who, without this decision, would have had to declare multiple claims (one for each period) or risked their post-commencement claim not being admitted.

In short, the Court of Cassation considered that the claim form served by the neighbour constitutes the sole generating event of the landlord's claim, even if the nuisance continues after the opening of the collective proceedings. This is a confirmation of previous case law, but with strict application: the persistence of the nuisance has no effect on the date of birth of the claim.

What this changes for you — concretely

If you are a landlord, this decision is good news. It means that as soon as you receive a claim form or a formal notice from your neighbour for nuisance caused by your tenant, your reimbursement claim against the tenant is born. You must therefore declare it immediately in the liabilities of the collective proceedings, even if the nuisance continues. However, be careful: you must declare the claim within two months of the publication of the opening judgment. If you exceed this time limit, you are time-barred and lose all rights.

Let's take a concrete example: you own a flat in Pamiers that you let to a couple. They host noisy parties every weekend. The neighbour downstairs sues you in March 2023 to obtain damages. In May 2023, your tenants are placed in judicial reorganisation. You must declare your claim to the judicial representative before July 2023. If you wait until the nuisance stops (for example in September 2023), you will be out of time. Thanks to this decision, you know that your claim was born in March 2023, the date of the claim form, and you can declare it in time.

For tenants, this decision has little direct impact. But indirectly, it exposes them to being pursued by their landlord after the collective proceedings, if the claim has been declared. Indeed, the landlord can recourse against the tenant to obtain reimbursement of the sums he had to pay to the neighbour. The tenant will therefore have to repay, unless he obtains a discharge of his debts (in judicial liquidation in particular).

For co-owners, the same logic applies if a co-owner causes nuisance and is in collective proceedings. The co-ownership association (syndicat des copropriétaires) must declare its claim as soon as the claim form is served, even if the nuisance persists.

Four tips to avoid this type of dispute

• Declare your claim as soon as you receive a claim form: do not delay. As soon as you are sued by a neighbour, inform yourself about the situation of your tenant. If he is in collective proceedings, declare your claim immediately to the judicial representative. Use the Cerfa form no. 10966*01.
• Keep all evidence of the claim form: keep a copy of the claim form, the formal notice, and any correspondence exchanged. These documents are essential to prove the date of birth of your claim.
• Regularly check your tenant's situation: you can consult the Bodacc (Official Bulletin of Civil and Commercial Announcements) to know if your tenant is subject to collective proceedings. You can also request a Kbis extract.
• Do not confuse pre-commencement and post-commencement claims: if you are unsure about the date of birth of your claim, consult a lawyer lawyer. A mistake can be costly.

Further reading: related case law and developments

This decision is part of constant case law of the Court of Cassation. Already, in a judgment of 12 November 1992 (no. 90-21.759), the commercial chamber had held that the claim for eviction compensation of a commercial tenant arises on the date of the request for renewal of the lease, and not on the date of eviction. Similarly, for neighbourhood disturbances, the Court of Cassation has had the opportunity to specify that the claim arises from the claim form, even if the damage is continuous. This position was confirmed by a judgment of 8 March 2005 (no. 03-12.879), which repeats exactly the same reasoning for industrial nuisance.

The trend is therefore clear: judges favour a single and certain date (the claim form) to determine the birth of the claim, rather than a floating date linked to the persistence of the nuisance. This simplifies the management of collective proceedings and avoids disputes. For the future, it can be expected that this solution will be extended to other types of claims (for example, claims for compensation for occupation without right).

Key points to remember

1. What is the date of birth of the claim? It is the date of the claim form served by the neighbour, even if the nuisance persists afterwards.
2. Do I have to declare my claim if the nuisance continues? Yes, and you must do so within two months of the publication of the opening judgment of the collective proceedings.
3. What happens if I do not declare in time? You lose your right to be reimbursed by the tenant. You will bear the financial consequences alone.
4. Can I declare a claim for future nuisance? No, you can only declare claims arising before the opening judgment. For subsequent nuisance, you will have to declare a new post-commencement claim, but within a one-year time limit.
5. Does this decision apply to residential leases? Yes, the principle is the same regardless of the type of lease (residential, commercial, professional).

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (£45) can save you months of proceedings — and often much more. Book an appointment →